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Commission dodges democratic control of Europol

A long-awaited European Commission communication on the democratic control of Europol has recommended little more than cosmetic changes to the current system and failed to address the key problem areas of decision-making and judicial accountability. The Commission sets its stall out early stressing the need to find a balance between parliamentary control and police confidentiality and discretion. Judicial control of Europol is not covered in the communication, with the Commission suggesting that as Europol does not have operational powers, the current framework is sufficient. But,

"once it becomes clear, at some point in the future, that such operational powers will be conferred on Europol, it will be necessary to examine very carefully what this implies for the then existing controls over the organisation and to take measures that go further".

Since Europol was created as a non-operational organisation under the 1995 Convention, its role has moved in ever more operational direction. Its officers will soon be formally authorised to participate in joint investigation teams and joint-member state operations are already based at Europol and part of Europol's 2002 budget has been reserved for the creation of joint teams (although financial control is another matter that the Commission chooses to disregard). In addition to these quasi-operational powers, the EU's joint team of counter terrorist specialists is based at Europol and it has just been proposed that Europol should have immediate access to data held in the SIS for investigative purposes.

Content to ignore these key issues, the Commission chooses instead to "clarify" some "basic questions" concerning Europol's tasks and functions and sees its paper as a "first step" in "gradually improving" democratic control since Europol is, at present, "adequately supervised" by the competent Ministers via their representatives on the Management Board.

European and national parliaments

The only issue dealt with by the Commission is accountability to the European and national parliaments. At present the EP is entitled to a sanitised version of Europol's annual report to the Council of Justice and Home Affairs Ministers - the Commission has proposed that it should receive the Council version. In addition, the Europol Convention should be amended so that the EP has the formal right to request an exchange of views on the report with the Presidency and to request the Europol Director to appear before the competent committee. The Joint Supervisory Body should also draw up an annual activity report and forward it to the EP. Finally, the Commission proposes a joint parliamentary committee:

"consisting of members of both the Member States' and EP committees responsible… for police matters … [which] could meet twice a year to exchange information and experience and to discuss matters … [and] would maintain close contact with Europol through a special body of about five Members nominated by the joint committee and reporting to it".

The crux of the Commission's argument is that the EP is in the same position as national parliaments when it comes to the running of the police, and these proposals may well satisfy many MEPs:

"Parliamentary control over Europol, be it at national or European level, thus takes a somewhat indirect form. This is however also true of the control of police in most Member States. It is the responsible Minister, and in the final analysis the Government, which, being politically responsible for the functioning of the police, is accountable to Parliament. Parliaments do not normally have a direct influence in the running of the police."

What the Commission ignores, is that EP has no real powers in the deciding legislation affecting the remit or powers of Europol - it can not reject legislation propose measures on its own initiative - whereas parliaments in the member states must approve rules governing the functioning of national agencies. While democratic control over the running of the police at national level is also inadequate (in the UK parliamentary select committees have long been frustrated by a lack of information and unaccountable agencies), minimum standards are hardly appropriate. For the Commission it is governments which are seen to provide "democratic control", answerable as they are to parliaments, and in this respect, with a government appointee each on the Europol Management Board:

"the controls are similar to, if not wider that controls that exist in the Member States for national police services, despite the fact that the latter's powers are much wider than the current ones of Europol."

Governmental scrutiny of policing is one thing - although the Management Board does not supervise the day-to-day running of Europol - "democratic control" is quite another. In democracies, it is understood that political scrutiny is accompanied by judicial scrutiny and control. As such, the UK National Criminal Intelligence Service, an operational agency on which Europol is loosely based, is (at least on paper) also "controlled" by the Police Complaints Authority, Her Majesty's Inspector of Constabulary, the Crown Prosecution Service and answerable to the Courts. Contrary to the Commission's misleading claim it is here that "controls that exist in the Member States for national police services" are much wider in the member states than for Europol.

"Democratic control of Europol", European Commission, COM (2002) 95, (dated 26.2.02)

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